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Courts take on Stephen Harper on free speech: Siddiqui

Canada pioneered a reasonably workable model for free speech, which has now been surrendered to post-Sept. 11 hysteria.

Prime Minister Stephen Harper axed the anti-hate provision of the Canadian Human Rights Act but it has since been upheld by the Supreme Court and the Federal Court of Appeal. (FRED CHARTRAND / THE CANADIAN PRESS)

Following the Sept. 11, 2001, terrorist attack by 19 Arab Muslims, George W. Bush invaded Iraq for no other good reason than to whack an Arab/Muslim nation. Stephen Harper axed the anti-hate provision of Canada’s Human Rights Act for no other good reason than that it was hampering those wanting to rhetorically whack Arabs/Muslims.

Harming people with words is better than killing them with bombs. But the Conservative majority in Parliament was disingenuous in invoking free speech last year to enable unfettered anti-Islamic speech. The same MPs and senators had not said boo about the law that had long protected other maligned minorities — Indians, Jews, Romas, gays, etc.

What was good for the goose was not good for the Muslim gander.

Harperites are also mum on a Canadian Radio-television and Telecommunications Commission ruling that Al-Jazeera Arabic TV could not be shown in Canada without installing elaborate around-the-clock mechanisms to censor anything that might be deemed anti-Semitic or is otherwise unacceptable. The Qatari network is appealing that 2004 ruling, saying it inhibits free speech for a service that’s broadcast, with no restrictions, in more than 50 nations, including Israel.

Double standards are also at work across Europe where anti-hate laws still exist.

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In France, Interior Minister Manuel Valls has banned anti-Semitic comedian Dieudonné M’bala M’bala, rightly so, under a law that proscribes “inciting racial hatred.” Yet the minister is busy demonizing and deporting Roma. And he has had little to say about racist rants against Muslims and black people, such as a TV commentator wailing about “the ostentatious virility of blacks and Arabs seducing many young white women.”

Extremist parties are doing well across Europe, and their racism is going unchallenged. Indeed, their discourse has entered the mainstream.

To a lesser degree, the same is happening in Quebec under the guise of the Charter of Quebec Values and the rest of Canada in the name of free speech.

In axing the anti-hate law, Ottawa copied the United States, which does not curb free speech in the belief that the antidote to hate speech is more speech, not less. That’s fine in theory but not in practice — the rich and the powerful have their say but not the vulnerable groups.

Under Harper, Canada has ended up with the worst of both Europe and the United States. Section 13 — it prohibited hate speech on grounds of race, religion, ethnicity, etc. — is gone. But he has retained the anti-hate provision of the Criminal Code, which can put you in jail for up to two years.

Into this confused state of affairs, enter our top courts.

Last year, the Supreme Court unanimously upheld the constitutionality of Section 13. And last week, the Federal Court of Appeal did so, saying that the penalty of up to $10,000 that the section prescribes against hate-mongers is “a reasonable means of imposing financial accountability for the damage caused by the vilification of targeted groups and of deterring the communication of hate speech.”

The Federal Court went ahead with that finding even while noting that Parliament has already spoken and that its act received royal assent last year and comes into effect one year from that date, on June 26 this year.

Both courts endorsed the same principle: Canada values free speech but also freedom from hate, especially to protect vulnerable minorities who are as worthy of equal respect and dignity as the majority.

This “distinguishes our system from the American one,” says Mark Freiman of Toronto, former chair of the Canadian Jewish Congress and legal counsel, and a strong proponent of anti-hate laws.

He notes that the “blinkered way” the U.S. pursues free speech led to the catastrophic 2010 U.S. Supreme Court ruling granting corporations their free speech right to spend unlimited money for a cause or a candidate or a party.

That opened the floodgates to hundreds of millions of dollars being spent to influence elections and public policy. Lawmakers have become echo chambers of their pay masters, no matter how wacky or divisive or hateful the ideas.

In a much-discussed book, The Harm in Hate Speech, Jeremy Waldron, a legal philosopher, argues that America has overprotected free speech at the expense of inclusiveness that is also at the heart of the American ideal. But the chances of changing the status quo are zero, given the First Amendment protection for free speech.

Reasonable people can agree to disagree on limits or no limits to free speech. That’s why the issue continues to bedevil democracies, from North America to Europe to Israel to India and beyond. But Canada had pioneered a reasonably workable model, which, sadly, has been surrendered to post-Sept. 11 hysteria.

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